W v Accident Compensation Corporation - [2018] NZHC 937

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IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-Ā-TARA ROHE

CIV-2017-485-000557

[2018] NZHC 937

UNDER Section 162(3) of the Accident Compensation Act 2001

IN THE MATTER

of an appeal against a decision of the District Court at Wellington

BETWEEN

W

Appellant

AND

ACCIDENT COMPENSATION CORPORATION

Respondent

Hearing: 9 April 2018

Counsel:

L J Newman and C L Kerr for Appellant

A S Butler and M J K Dodd for Respondent

Judgment:

3 May 2018

JUDGMENT OF COLLINS J

PART I INTRODUCTION

[1] Two questions of law are addressed in this judgment. Those questions are set out in [5]. Both questions arise in the context of the appellant, W,1 having been seriously assaulted and injured by her birth mother when she was only about 14 weeks

1 The appellant’s name, address, occupation and particulars that could lead to her identification have been suppressed pursuant to s 160(1) of the Accident Compensation Act 2001.

W v ACCIDENT COMPENSATION CORPORATION [2018] NZHC 937 [3 May 2018]

old. W has never remembered suffering the injuries, which fully healed by the time she was about nine months old.

[2] When she was five years old, W was told about the injuries and how they had been inflicted by her birth mother. From that time onwards, W suffered a pain disorder and in due course developed a number of psychological conditions, which fall within the definition of “mental injury” in s 27 of the Accident Compensation Act 2001 (the Act).2

[3] The issue of whether W is entitled to cover for her mental injuries hinges upon the definition of “personal injury” in s 26(1) of the Act, which defines personal injury as including:

(c) mental injury suffered by a person because of physical injuries suffered by the person.

[4] The Accident Compensation Corporation (ACC) accepted W had cover for her physical injuries but declined cover for her “mental injuries”. ACC’s decision was based on its understanding that W’s mental injuries were not caused directly by her physical injuries but by her learning of her injuries and the circumstances under which they were inflicted.

[5] In the District Court, Judge Henare dismissed W’s appeal from a Review of ACC’s decision and concluded W was not entitled to cover for her mental injuries. The two questions of law that have been posed for my consideration arising from Judge Henare’s decision are:3
(a)What is the proper ambit and meaning of the words “because of” in s 26(1)(c) of the Accident Compensation Act 2001?

(b)Was her Honour correct to hold that a “direct” causal link between the physical injury and mental injury was required to satisfy s 26(1)(c) of the Accident Compensation Act 2001 (mental injury suffered because of physical injury)?

2 Accident Compensation Act 2001, s 27:
“Mental injury means a clinically significant behavioural, cognitive, or psychological dysfunction”.

3 W v Accident Compensation Corporation [2017] NZHC 2553.

[6]The…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] NZHC 937
Decision Date: 3 May 2018

CaseChat Overview and Summary

W appealed against a decision of the District Court, which had dismissed her claim for cover of her mental injuries under the Accident Compensation Act 2001. The District Court had concluded that W was not entitled to cover for her mental injuries because there was no direct causal link between the physical injuries she had suffered at 14 weeks old and the mental injuries she developed later in life. The appeal raised two questions of law, which were: (1) What is the proper ambit and meaning of the words “because of” in s 26(1)(c) of the Accident Compensation Act 2001? and (2) Was the District Court correct to hold that a “direct” causal link between the physical injury and mental injury was required to satisfy s 26(1)(c) of the Act? The High Court answered the first question by concluding that the words “because of” in s 26(1)(c) of the Act should be understood in the context of the claim for cover. In most cases, a claimant's physical injuries would need to be both a factual and legal cause of their mental injuries. These requirements would be satisfied where the “but for” test was met, subject to certain exceptions, and where the physical injury materially contributed to the claimant's mental injury. The Court answered the second question by concluding that the District Court had erred when it held that there needed to be a direct causal link between W’s physical and mental injuries in order to satisfy the requirements of s 26(1)(c) of the Act. The Court remitted W’s case back to the District Court for rehearing in accordance with the directions set out in the judgment. W was entitled to costs on a scale 2B basis.

Orders